Community Legal Centres: A right to protest?

STEVE
BOLT[*]
reports on the case of Atkins (unreported, District Court of New South Wales,
Ducker J, Lismore, 27 November 2000).

The District Court at Lismore has upheld an appeal against conviction by an
environmental activist, effectively acknowledging that
an environmental
protester has a legal right to protest by blocking access to a development site
in some circumstances.

Albert Atkins was charged under s.6 of the Summary Offences Act 1988(NSW) after he was arrested (with about 100 others) for blocking the road to
a development site behind the Byron Bay lighthouse in
October 1999. Section 6
reads:

Obstructing traffic
A person shall not, without reasonable excuse (proof of which lies on the
person), wilfully prevent, in any manner, the free passage
of a person, vehicle
or vessel in a public place. Maximum penalty: 4 penalty
units.

The site has been the subject of much interest and
litigation over the years, and has undoubted conservation value. Among other
things,
the site contains a rare and endangered native orchid and is among the
few coastal heathlands close to a major centre that is still
largely
undisturbed.

The Byron Shire Council has consistently opposed development of the site by
the Detala Company, but in 1995 the Land and Environment
Court approved the
development, subject to certain conditions. One of those conditions was that
Detala must submit to Council a detailed
plan of any trees it planned to remove
before commencing work, consistent with Council’s tree preservation
order.

In October 1999, Detala attempted to put a bulldozer on the site to begin
work. Mr Atkins and hundreds of other residents blocked
the path of the
lowloader carrying the bulldozer, preventing access to the site. Mr Atkins was
arrested and then convicted in the
Lismore Local Court of obstruction (under s.6Summary Offences Act) and of resisting police. He was fined a total of
$700.

On appeal to the District Court, Judge Tom Ducker accepted that Detala had no
lawful right to begin work, accepting a Land and Environment
Court decision
(Byron Shire Council v Detala, unreported, Land and Environment Court, 14
March 2000) that the condition concerning compliance with the tree preservation
order
was a condition precedent to the development proceeding, and that any work
without compliance with that condition would be a breach
of s.123 of the
Environmental Planning and Assessment Act 1979 (NSW).

Therefore Judge Ducker found that Mr Atkins was preventing an unlawful
activity. Further, he found that, in the circumstances, it
was reasonable for Mr
Atkins to physically block the road to delay or prevent access as the bulldozer
was about to cause apparently
irreparable damage to the site. There was a
genuine urgency to the situation, in that recourse to due process (such as
seeking an
injunction) was not a viable or practical option. Mr Atkins,
therefore, had a reasonable excuse for the obstruction, as provided
for in s.6
of the Summary Offences Act.

The District Court quashed the conviction for obstruction. The penalty for
resisting police was set aside. In its place, the judge
imposed no conviction
under s.10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).